See also Born before 1973
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Born After 1984 to Parents Born Before 1973? Your Status May Be Inherited, Not Lost
Nemo dat quod non habet, sed quod habet, dare potest — No one can give what they do not have, but what they lawfully hold, they may pass on.
The previous article addressed the rights of Australians born before 1973, whose status as British subjects vested at birth and was never surrendered by any act of their own. If you are reading this as someone born after 1984, you may think that none of this applies to you. You may be wrong.
If both of your parents were born in Australia before 1973, there is a coherent and principled legal argument that you inherited a status and rights that no Parliament clearly and expressly extinguished before you were born.
What your parents held at their birth
As the previous article explained, a person born in Australia before 1973 was, at the moment of birth, simultaneously an Australian citizen and a British subject. Both statuses arose by operation of law at birth. Neither was a gift from Parliament. Parliament merely acknowledged what the common law had already established.
That status carried with it, as O’Connor J confirmed in Potter v Minahan (1908) 7 CLR 277, the correlative right to depart from and return to Australia freely, the right to the benefits and protection of the law, and the right to be treated as a member of the Australian community. Those rights could not be taken away without clear and unmistakable statutory language.
Your parents held those rights. They did not surrender them. The question for you is whether what they held could be passed on.
The principle of inheritance by descent
British subject status was never purely a matter of where you were born. It was also a matter of from whom you descended. The common law recognised two pathways to the status of British subject. The first was jus soli, the rule of the soil – birth within the dominions of the Crown. The second was jus sanguinis, the rule of blood – descent from a British subject parent.
The Nationality and Citizenship Act 1948 (Cth), which governed the law at the time your parents were born, expressly preserved both pathways. A child born to a British subject parent was recognised as a British subject by descent. That is not a novel proposition. It is the foundational rule of British nationality law as it existed for centuries.
The maxim at the head of this article states the principle precisely. Your parents could not give you something they did not hold. But what they lawfully held at the time of your birth, they could pass on to you.
What the 1984 Act did, and what it did not do
The Australian Citizenship Amendment Act 1984 (Cth) removed British subject status from domestic Australian law. It did so prospectively and without the individual consent of those whose status had already vested.
There are two things that Act did not do clearly or expressly.
First, it did not contain language clearly and expressly extinguishing the right of a person born after its commencement to inherit British subject status by descent from a parent whose own status had vested before the Act and had not been lawfully surrendered.
Second, it did not address the position of children not yet born at the time of its commencement whose parents’ status remained, on the arguments set out in the previous article, intact as a matter of common law.
Under the principle of legality, confirmed by the High Court in Potter v Minahan and consistently applied ever since, a court will not interpret legislation as abrogating fundamental rights unless Parliament has used language that is clear, express, and unmistakable. Where the language of a statute is ambiguous or silent on a particular situation, the interpretation that preserves rather than extinguishes rights is to be preferred.
The 1984 Act is silent on the specific question of inherited status by descent from parents whose own British subject status vested before its commencement. That silence, under the principle of legality, should be resolved in your favour.
The domicile of origin argument
Separate from the status question, and available to you independently, is the argument from domicile of origin.
The common law rules confirmed in Potter v Minahan establish that every person acquires at birth a domicile of origin. For a legitimate child, that domicile follows the father’s domicile at the time of birth. For an illegitimate child, it follows the mother’s. Domicile of origin vests at birth. It persists until voluntarily abandoned. It cannot be extinguished by statute without clear and express language.
If both of your parents hold a domicile of origin within the proclaimed Commonwealth of Australia, and you were born in Australia, your own domicile of origin is similarly within the Commonwealth. That domicile carries with it, as Potter v Minahan confirms, the right to depart from and return to Australia as your home. No administrative act, passport cancellation, or statutory instrument can extinguish that right without clearly and expressly authorised legal foundation.
This argument does not depend on the British subject status question at all. It stands independently, and it is available to anyone born in Australia regardless of when their parents were born.
How your position differs from your parents’
It is important to be precise about this, because honesty requires it.
Your parents’ position rests on status that vested directly and independently in them at their birth, before any amending legislation was enacted. Their claim is to a right that was theirs from the moment they drew their first breath, recognised by the law as it stood at that time, and never surrendered.
Your position, if rested on British subject status, is derived rather than independently vested. It depends on the proposition that your parents’ status was intact at the time of your birth and capable of being passed on by descent. That is an arguable proposition, but it is one step further removed from the direct vesting argument available to your parents.
The domicile of origin argument, by contrast, is available to you directly and independently, without needing to rely on derivation.
The honest assessment is that your claim is coherent, principled, and grounded in real legal authority. It is not as straightforward as your parents’ position. Both arguments, the derived status argument and the independent domicile argument, should be advanced together and each should be clearly distinguished in any formal declaration you make.
The right to travel and return
Everything said in the previous article about the right to travel and return home applies equally to you, grounded in your domicile of origin within the Commonwealth.
Your domicile of origin is not a passport. It is not a statutory privilege. It is a fact of law established at your birth that persists until you voluntarily abandon it. Potter v Minahan established that a person whose domicile of origin is in Australia, and who has never voluntarily abandoned it, cannot be treated as a stranger to this country. That principle does not carry an expiry date, and it does not contain an exception for persons born after 1984.
A passport is an administrative document. The right to return to your home is a common law right grounded in domicile and status. The two are not the same thing, and the withdrawal of one does not extinguish the other.
What you can do
If your parents were born in Australia before 1973 and you wish to place your own status on formal record, the appropriate step is a Notice of Declaration of Status that does the following.
It identifies your parents, their dates and places of birth, and their status as British subjects vested at birth prior to the 1984 amendments. It then asserts your own derived British subject status by descent under jus sanguinis, your independent domicile of origin within the Commonwealth under Potter v Minahan, and your reservation of all rights flowing from both. It places on record that you have never voluntarily abandoned your domicile of origin and have never consented to the extinguishment of any status derived by descent from your parents.
Such a notice does not guarantee any particular outcome in any court or agency proceeding. What it does is create a clear, contemporaneous, and principled record that any agency or officer dealing with you is put on notice to address directly and expressly, with reference to clear statutory authority if they intend to act contrary to the rights asserted.
A final note on honesty
The arguments in this article and its predecessor are grounded in real cases, real statutes, and real legal principles. They are not invented. They have not, however, been tested in their precise form in any Australian court. Australian courts as currently constituted apply domestic positive law as enacted, and that law does not presently recognise British subject status for persons born after 1984.
What these articles have attempted to do is set out, accurately and without embellishment, what the law said at material points in time, what rights arose under that law, and what principled arguments exist for those who wish to assert that those rights were never lawfully extinguished.
Every person has the right to know the law that governed their birth, and the rights that arose from it. That is all this article claims to provide.
Fiat justitia ruat caelum — Let justice be done though the heavens fall.
This article is for information purposes only and does not constitute legal advice. Readers seeking to rely on any of the principles discussed should obtain independent advice from a qualified barrister.
Last Updated 6 months ago
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